Lay v. Seago , 47 Ga. 82 ( 1872 )

Montgomery, Judge.

1. Was the deed from Bailey to Seago void, under sections 1942 and 1943, of the Code, on account of the provision in it for a return of the surplus left, if any, to Bailey after sale of the property, and payment of the debt to Seago which might arise from his having to take up the drafts. In the case of Cary vs. Giles, 10 Georgia, 28 to 35, Judge Nesbit says: “We know of no law of force in Georgia, which condemns as fraudulent and void a transfer made by a failing or insolvent institution, (the Bank of Macon) in payment 'of a just debt, because the amount transferred is larger than is reasonably sufficient to pay that debt, with an agreement between the parties that the surplus shall be returned to the transferee — none whatever. On the contrary, in our judgment, the law approves just such a transaction, and will sustain it.” “By operation of law the excess reverts to the assignor, and in his hands is as much liable to his other creditors as it ever was, and it is also liable in the hands of the assignee to these (objecting) creditors in equity; indeed, in Georgia, it can be reached at law by our process of garnishment.”

This decision was made under the Act of 1818. A comparison of this Act with sections 1942 and 1943 of the Code, will show that the provisions of the Act of 1818, (T. R. R. Cobb’s Digest, 168) are much more stringent against transfers of property by insolvent debtors to secure favored creditors than are the sections of the Code referred to. If a deed of assignment like the one under review would have been valid under the Act of 1818, as decided in 10 Georgia, a fortiori is it valid under the Code? The present case is stronger than that in 10 Georgia, in this: it secures Seago, and indemnifies him against risk to be incurred in consideration of the making of the deed, Seago thus giving, at the time, a valuable consideration for the deed, making it in effect a mortgage to secure future advancements: Code,-1953. And this would have saved it from the operation of the Act of 1818: Carter vs. Neal, 24 Georgia, 353. The case in 10 Georgia was a transfer of property to secure an old debt — no new consideration moving at the time from the transferee to the transferer. The case is reviewed and affirmed in Banks vs. Clapp, 12 Georgia, 514. So far as these cases interpret the Act of 1818, however, they may be said to be overruled by Miller vs. Conklin & Company, 17 Georgia, 430; Norton vs. Cobb, 20 Georgia, 44; Watkins vs. Jenks, 24 Georgia, 431, and Lamb & Mathis vs. Radcliff, 28 Georgia, 520. It is a little remarkable that none of these cases refer to Carey vs. Giles, which was a case considered by Judge Nesbit, in his usual careful and elaborate style, the point now under consideration receiving especial attention at his hands. Whatever then may have been the correct interpretation to be placed upon the Act of 1818, we think there can be very little doubt on this question under the Code. Indeed, the enlarged powers given to an insolvent in the disposition of his property, as contained in the Code, would seem to have been there inserted with a view of reconciling the conflicting opinions of the Supreme Court. However that may be, we find' the Code providing that in cases of this character “a bona fide transaction, on a valuable consideration, and without notice or grounds for reasonable suspicion, shall be valid;” and “a debtor may prefer one creditor to another, and to that end he may bona fide give a lien by mortgage or other legal means,” etc., “the surplus in such cases not being reserved for his own benefit,” etc., “to the exclusion of other creditors.” The sections of the Code from which these quotations are made alters the Act of 1818, and makes that legal now, which the later decisions hold to be illegal under that Act: Embry & Fisher vs. Clapp, 38 Georgia, 249; Rowland vs. Coleman, March 5th, 1872. Is the surplus in the case before us “reserved” for the benefit of Bailey? Reserved" means kept back, retained, withheld: Zell’s Encyclopaedia. The grantee in the case before us is to reserve nothing for the benefit of the grantor, but after paying his own debt returns the surplus where the whole originally was, subject, as the whole was, to the demands of the grantor’s creditors. In short, we understand the statute to mean that there shall be no attempt by the assignment or transfer to cover up any portion of the debtor’s property in trust for him, or in any way for his benefit, or of any other favored creditor, so that it may not be reached by his other creditors, should they elect to pursue it for the payment of their own claims. Our judgment is, that the second exception to the master’s report is not well taken.

2. Is an accommodation acceptance of a bill of exchange for a commission, to enable the drawee to raise money by discounting it, where commission and discount amount to more than legal interest, per se usurious on the part of the acceptor ? Here we are met with conflict of opinion. "Without entering into an elaborate argument in favor of the position assumed by the Court, it will be sufficient to refer. to the case of Ketchum vs. Barber et al., 4 Hill, (New York Reports,) 224, in support of the doctrine which we have laid down. Both sides of the question are very ably presented in that case by Nelson, Chief Justice, in delivering the opinion of the Court, and by Mr. Justice Cowen in his di|senting opinion, and the authorities reviewed. Upon the whole, we see no conclusive reason why the case of an accommodation acceptor should stand upon a footing different from the thousand and one devices that the ingenuity of man has resorted to for the purpose of evading the usury laws. If it be a device, and the accommodation acceptance is only colorable, it is usury; if not, not. “ It depends principally on the contract being a loan ; and the statute uses the words ‘ directly or indirectly;’ therefore, in all questions, in whatever respect, repugnant to the statute, we must get at the nature and substance of the transaction; the view of the parties must be ascertained to satisfy the Court that there is a loan, and borrowing, and -that the substance was to borrow on the one part and to lend on the other; and where the real truth is a loan of money, the wit of man cannot find a shift to take it out of the statute Lord Mansfield in Floyer vs. Edwards, Cowp., 112. To find out what is ““the real truth,” the jury is the appropriate tribunal to inquire of, and the question should be submitted to them under the charge of the Court, that if the transaction was resorted to, to evade the usury laws, the taint attaches, if it is a bona fde sale of credit to enable the drawer to borrow money of another, it is not usurious.

3. The last exception to the master’s report is, in our judgment, untenable in the face of section 2136 of the Code j whether the bank forfeited the interest, under the banking law-of Congress of 1884, (2 Brightley’s Digest, 58,) or whether the bank could have recovered on the hills, under sections 1480, 1478 of the Code, is not the question. Bailey, or his administrator, permitted the bills to be paid by Seago without notifying him that the claim would be resisted on the ground of usury. If the fact that the bills were void, under sections 1480 and 1478 of'the Code, or that the interest was forfeited finder the Act of Congress, must now deprive Seago of his right to recover, as contended, then, in no case, can a surety recover usury of his principal which he has paid. The effect of (M usury is to annul and make void the contract for the usury: Code, 2025. In what case, then, is section 2138 applicable ?

Judgment affirmed.